JUDGMENT 1. - This appeal has been filed by the State of Rajasthan under section. 378(1) & (3) of Code of Criminal Procedure against the judgment of the acquittal dated 17.12.1986 passed by Munsif and Judicial Magistrate, Raisinghnagar (hereinafter referred to as `the trial Court') in Criminal Case No. 89/1984, whereby the trial Court acquitted the respondents for offence under section. 9 of the Opium Act, 1878 (for short `the Act'). 2. I have heard learned Public Prosecutor and the learned counsel for the accused-respondents. 3. On a First Information Report Exhibit-P-6 lodged by PW-5 Ramdeo Singh, police investigated the case and filed charge-sheet against the accused-respondents for offence under section. 9 of the Act. The accused-respondents were put to trial. The prosecution produced PW-1 Chananmal, Malkhana Incharge, PW-2 Balram, who carried alleged contraband to Forensic Science Laboratory, PW-3 Jeet Singh and PW-4 Kanhayilal both witnesses of recovery (motbir) and PW-5 Ramdeo Singh, Seizure Officer. The accused-respondents were examined under section. 313 Cr.P.C. In defence DW-1 Kishora Ram was examined. 4. On appreciation of the evidence produced by the parties, the trial Court came to the conclusion that the prosecution failed to establish guilt of the accused-respondents beyond any manner of reasonable doubt and accordingly, the accused-respondents were acquitted for the offence charged. 5. It is contended by learned Public Prosecutor that the trial Court fell in error in acquitting the accused-respondents, though there are contradictions in statements of the prosecution which are minor contradictions. 6. Learned counsel appearing for the accused-respondents supported the judgment of the trial Court and contended that there are material contradictions with regard to testimony of various prosecution witnesses as also recovery of the contraband. He further contended that the contraband alleged to have been recovered did not remain in sealed container till it reached to the Forensic Science Laboratory for analysis PW-5 Ramdeo Singh, Seizure Officer stated that he recovered 50 gms and 30 gms opium from first respondent-Bhagirath and second respondent-Bhansilal respectively, whereas report of Forensic Science Laboratory, Jaipur dated 28.2.1984 Exhibit-P-7 reveals that packet marked "A" and "B" weighed 60 gms and 40 gms alleged to have been recovered from first respondent-Bhagirath and second respondent-Bhansilal respectively. This shows that the prosecution has concocted a false case against the accused-respondents. There is no reason for such a large variance in weight of Opium, had there been a true case. 7. This shows that the prosecution has concocted a false case against the accused-respondents. There is no reason for such a large variance in weight of Opium, had there been a true case. 7. I have carefully gone through statements of the prosecution witnesses. PW-1 Chananmal, Malkhana Incharge stated that he received two packets containing 30 gms and 50 gms of Opium. PW-2 Balram stated that he carried two packets containing Opium to the Forensic Science Laboratory, Jaipur. He stated that he does not know whether the item which he carried relates to the present case or not. PW-3 Jeet Singh witness of alleged recovery stated that the accused-Bhagirath was carried `Bahiyan' (account books) which was tied in cloth. With regard to weighing, he stated that weight of the alleged contraband which he stated is on the basis of estimation (andaz) and the alleged contraband was not weighed in his presence. PW-4 Kanhaiyalal stated that whether Opium was weighed before sealing or not, he does not know and weight of Opium was mentioned in seizure memo on the basis of estimation (andaz) and Opium was not weighed at the site before it was sealed. He further stated that whether the sample was taken from each packets or not, he does not know this fact. He does not know that in how many packets Opium was sealed. He also doses not know whether the sample was sealed in separate packets for sending to the Forensic Science Laboratory. He also does not know that sample of half of Opium was taken or more. The accused-respondents were having `Bahiynan' which was not seized. He further went in saying to the extent that even after recovering of Opium, it was weighed in Police Station or not, he does not know. PW-5 Ramdeo Singh, Seizure Officer stated that he recovered 50 gms Opium from first respondent-Bhagirath and 30 gms from second respondent-Banshilal. In his statement this witness nowhere stated that separate sample was taken from Opium for sending it to the Forensic Science Laboratory for analysis. He stated that Opium was weighed at the site itself and weight and measurement was provided by PW-3 Jeet Singh, from jeep which was hired. The prosecution has failed to produce the jeep driver. In his statement this witness nowhere stated that separate sample was taken from Opium for sending it to the Forensic Science Laboratory for analysis. He stated that Opium was weighed at the site itself and weight and measurement was provided by PW-3 Jeet Singh, from jeep which was hired. The prosecution has failed to produce the jeep driver. No independent witness to recovery was produced to despite the fact that the jeep driver was available who could have been an independent witness to the alleged recovery. PW-3 Jeet Singh clearly stated that the seized Opium was weighed on the spot of recovery. The Opium was weighed on his estimation whereas PW-4 Kanahiyalal stated that alleged Opium was not weighed at the site of recovery. These witnesses to the recovery are not independent witnesses. There are material and glaring contradictions in the statements of these witnesses so far as recovery of Opium is concerned. 8. The prosecution witnesses admitted that there were independent witnesses available but no independent witness was made `Motbir' of alleged recovery. Not only this the driver of the jeep was not made witness to the recovery. No reason has been assigned for not taking independent `Motbir' of the recovery. Thus prosecution story has become more suspicious in absence of evidence of independent witness despite the fact that independent witnesses were available. 9. There are material contradictions in statements of PW-3 Jeet Singh and PW-5 Ramdeo Singh with regards to recovery of Opium, its weight and seal. PW-3 Jeet Singh stated that said Opium was not weighed on the spot in his presence and weight was recorded on estimation. PW-5 Ramdeo Singh, Seizure Officer stated that it was sealed on the spot after weighing it with weight and measure. Thus, there are material contradictions in the statements of these prosecution witnesses. The trial Court having considered entire evidence produced by the prosecution reached to the conclusion that the case as set up by prosecution does not appear to be correct in view of the fact that the prosecution story is not consistent. In my considered opinion, the trial Court was justified in reaching to this conclusion. 10. After having examined statements of various prosecution witnesses noticed above, I am of the considered opinion that the prosecution has failed to establish the guilt of the respondents beyond any manner of doubt. In my considered opinion, the trial Court was justified in reaching to this conclusion. 10. After having examined statements of various prosecution witnesses noticed above, I am of the considered opinion that the prosecution has failed to establish the guilt of the respondents beyond any manner of doubt. The burden is on the prosecution to prove the case by producing cogent evidence, which fall short in the instant case. In this view of the matter, I find no error in the findings recorded by the trial Court. Since, the prosecution has failed to establish the guilt of the accused-respondents beyond any manner of reasonable doubt, therefore, order of acquittal of the trial Court suffers from no error. In view of the aforesaid discussion, I find no merit in the State appeal and accordingly it fails and is dismissed.Appeal dismissed. *******